Law on Commercial Arbitration

Group members: 1. Trng An 2. Nguyn Nht Huy 3. Mai Nguyn nh Duy 4. Lng Thin L

Outline
1. What is arbitration 2. Governing scope 3. Arbitration agreement 4. Arbitrator. 5. Arbitration Centre 6. Instituting [Arbitration] Proceedings 7. Arbitration tribunal

8. Interm Relief 9. Dispute resolution sessions

10. Tribunal Award

1.What is arbitration?
Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. Termination the conflict.

Source of Law

Law on Commercial Arbitration 2010 (Valid as of 1/1/2011) (to replace Ordinance on Commercial Arbitration 2003)

No guiding decree issued yet.

2. Governing Scope (Art.1)

Ordinance on Commercial Arbitration 2003 Only disputes from commercial activities of individuals, organizations doing business Law on Commercial arbitration 2010

Disputes between parties arising from commercial activities.

Disputes arising between parties at least one of whom is engaged in commercial activities Other disputes between parties which iis stipulated by law as may be resolved by arbitration.

Principles for dispute resolution by arbitration (Art.4)

Arbitration is applicable subject to the principle of an arbitration agreement Arbitrators must be indepentdent, objective, impartial and obedient to stipulations of law All disputing parties shall be equal interm of rights and obligations. The arbitration tribual shall be responsible to create farvorable conditions for them to exercise their rights and obligations. Dispute resolution by arbitration shall be conducted on a non-public manner, except as otherwise agreed by the parties The arbitral award is final.

Arbitration & State Support

Court To support in appointment/change of ad hoc arbitrators To support resolution of claims on invalidity or unenforceability of arbitration agreement, competence of arbitration tribunal To issue a decision on applying interim relief To support collection of evidence, covening of witnesses With power to cancel arbitration award in prescribed cases Enforcement Bureau To support requests from arbitral award creditor in case award debtor does not voluntarily carry out the award

Negotiation and conciliation during arbitration proceedings (art.9, LCA 2010)

Parties shall have the freedom, during the process of arbitration proceedings, o negotiate and reach agreement with each other to resolve their dispute, or to request the arbitration tribunal

Applicable law in dispute resolution (art. 14, LCA 2010)

apply the law of Vietnam in order to resolve the disputes without foreign element. For disputes with a foreign element, apply the law chosen by the parties. the arbitration tribunal may apply international customs in order to resolve the dispute if the law of Vietnam [or] the law chosen by the parties does not contain specific provisions relevant to the matters in dispute

3.Arbitration Agreements

Form of arbitration agreements (Art. 16, LCA) an arbitration clause in a contract a separate agreement

Arbitration Agreements (cont.)

An arbitration agreements must be in writing
An agreement establish via an exchange between the parties by telegram, fax, telex, email An agreement establish via the exchange of written info. between parties An agreement prepared in writing by lawer, notary or competent org. At the request of the parties Reference by the parties during the course of a transaction to a document: contract, charter,... Exchange of a satement of claim and defence which express the existence of an agreement proposed by one party and not denied by other party.

4.Arbitrator

Qualifications of arbitrators (art.20,

LCA 2010)

1. A person with all the following qualifications may act as an arbitrator: Having full civil legal capacity Having a university qualification and at least five years' work experience. In special cases an expert with highly specialized qualifications and considerable practical experience may still be selected to act as an arbitrator 2. A person with all the qualifications prescribed in clause 1 of this article but who falls into one of the following categories shall not be permitted to act as an arbitrator: A person who is currently a judge, prosecutor, investigator, enforcement officer, or official of a people's court, of a people's procuracy, of an investigative agency or of a judgment enforcement agency; A person under a criminal charge or prosecution or who is serving a criminal sentence or who has fully served the sentence but whose criminal record has not yet been cleared.

Rights and obligations of arbitrators (art. 21, LCA 2010)

1. To accept or refuse to resolve a dispute. 2. To remain independent during dispute resolution. 3. To refuse to provide information about a dispute. 4. To receive remuneration. 5. To maintain confidentiality of the contents of the dispute which he or she resolves, unless information must be provided to a competent State authority in accordance with law. 6. To ensure that resolution of a dispute is impartial, speedy and prompt. 7. To comply with professional ethics rules.

5.Arbitration Centres
Nature. Non-govermental org. with legal entity status , seal and separate account.(Art. 27, LCA 2010)

Functions of arbitration centre: (Art.23, LCA 2010)

To organize, coordinate dispute resolution by institutional arbitration Support arbitrators in term of administration, office work and other assistance during arbitration

Conditions for establishment of arbitration centre. (art.24, LCA 2010)

At least 5 founders (Vietnamese citizen, qualified as arbitrators) Arbitrator criteria: civil act capacity, undergraduate degree holders with min = 5yrs experience or experts with extensive expertise. (art.20, LCA 2010)

Arbitration Centres (cont.)

Procedures for establishment of arbitration centre. (art.24, LCA 2010) Rights and obligations of arbitration centre (Art. 28, LCA 2010) Formulate the charter and procedural rule Prescribe the qualification required for arbitrators Appoint arbitrators to establish an arbitration tribunal Supply administrative and office facilities and other services

Report annual operation to the Department of Justice

Archive files.

6.Instituting [Arbitration] Proceedings (art.30, LCA 2010)

A statement of claim shall contain the following particulars:
Date on which the statement of claim is made; Names and addresses of the parties, and names and addresses of witnesses, if any; Summary of the matters in dispute; Grounds and evidence, if any, of the claim; Specific relief sought by the claimant and value of the dispute; Name and address of the person whom the claimant selects as arbitrator or request for an arbitrator to be appointed. The arbitration agreement and originals or copies of relevant materials must accompany the statement of claim.

7.Arbitration Tribunal
Composition of arbitration tribunal: (art.39 LCA 2010) Consist of one or more arbitrators . Types of arbitration tribunal: (Art2. LCA 2010) Ad hoc arbitration Established to resolve a certain dispute when requested and to be resolve upon completion of resolution of such dispute Without head office, without supporting mechanism and not subject to any rules of arbitration applicable to simple disputes and disputants with sound legal knowledge and experience Institutional arbitration conducted at arbitration org. in accordance with their procedural rules Set up as arbitration org. with org. structure , head office, a list of arbitrator and subject to their own charter Form of big arbitration centres with their own rules of arbitration

Arbitration Tribunal (cont.)

Jurisdiction of arbitration tribunal: (art. 43, LCA 2010) If the case is within the jurisdiction of the arbitration tribunal to resolve resolve the dispute in accordance with this law. If the dispute is not within the jurisdiction of the arbitration tribunal or the arbitration agreement is void stay the proceeding and immediately notified the parties.

If the arbitration tribunal resolve the case exceed its jurisdiction the parties lodge complaint with the arbitration.(art 43 (3), LCA 2010).
Has the right to meet and hold discussion with one party in the presence of the other parties to clarify issues relevant. (Art.45 LCA2010)

Has the right to collect evidence. (Art.46, LCA 2010)

8.Interm Relief
(Art. 49, LCA 2010)
Prohibiton of any change in the status of the assets in dispute Prohibition of acts or requirement for some specific action to be taken, aim at preventing conduct adverse to the arbitration process of the arbitration proceedings

Attachment of the assets in dispute

Requirement of preservation, storage, sale or disposal of any of the assets of one or all paties in dispute Requirement of imterim payment of money as between the parties Prohibition of transfer of assets right of the assets in dispute

9.Dispute Resolution Sessions

Composition of and procedures for dispute resolution sessions

(art. 55, LCA 2010)

Conducted in private

Parties may personally attend dispute resolution sessions or may authorize their representatives to attend The arbitration tribunal may permit other people to attend dispute resolution sessions, if the parties so consent The order and procedures shall be stipulated in the arbitration procedural rules of the arbitration centre.

10. Arbitral Awards

Arbitral Awards and Enforcement of Arbitral Awards

Principles for issuance of award: (Art.60 LCA 2010) Based on majority vote If voting does not result in the majority vote then the arbitral award should be made by the chairman of the arbitration tribunal.
Validity of arbitral award:(Art.61 LCA 2010) Be issued in the session or no later than 30 days from the end of final session. Then sent to the parties immediately. Enforcement of arbitral award: (Art.67 LCA 2010) Arbitral awards shall be enforced in accordance with the law on enforcement of civil judgments.

Right to petition for arbitral award to be set aside (art. 69,

LCA 2010)

Within thirty (30) days from award, A party with sufficient evidence proving that the arbitration tribunal issued the arbitral award which not accordance to this Law. Situations setting aside arbitral awards: o No arbitration agreement o Arbitration proceedings were inconsistent o The evidences is not liable o The award is contrary to the law of Viet Nam

Case
On 01.06.2011 Mrs.Hoa signing the contract number 1 to buy one apartment in K city, province C of construction company and business ThanhDo. On 20/07/2011 while receiving the house he found that the quality of house not guaranteed as in contract. Then, Mr. Hoa petitioned the Thanh Do company in provincial court C (where C is headquartered company). Thanh Do Company against the jurisdiction of the court because they think that in the first contract clearly two parties agree all disputes will be resolved in arbitration centers of DatViet. a, Are the Arbitration center of Dat Viet has jurisdiction to resolve the incident? Why? b, Are provincial Court C has a legal right to processing the case of Mrs.Hoa? Why?

Thank you for your attention